Failure to Appear Civil Assessment

Why does my ticket cost more now than it did before?

Why is my driver’s license suspended?

Getting a ticket is just another thing that seems to bog us down, feels like two steps back. Accepting that it is simply part of driving–tickets happen–can be difficult. Time passes, and before you know it, months pass by, past the due date. Here, we will discuss Failure to Appear Civil Assessment, also known as “CIVA” and “FTA.”

When someone fails to appear in court by the date on the bottom of the ticket, the court will send them a notice of collections, also called a courtesy notice. From the day of mailing, the person has ten days to set up a new court date or appear in court. This can be done online in Orange County at the website for Superior Court of California, County of Orange: occourts.org. Los Angeles County is catching up and may have online services by now. (LA courts recently improved their website, and changed the address to: lacourt.org.) It can also be done in person. Be aware that different courts have different rules about walk-in cases on the same day that you want to see a judge.

If someone fails to appear within the ten day notice window, the court will quickly add a CIVA, adding $325 to the ticket, for the FTA, failing to appear. There is also a FTP, failure to pay on time, for post-conviction cases, which adds the same $325 to the total court costs on the case.

Some judicial officers are sympathetic to defendants who fail to appear. However, usually, without a valid excuse–military service, hospitalized, jailed–the $325 is stuck on you until you pay it. If you do not pay it, a hold will remain on your DMV record. Usually, this means that you will not be able to renew your license when it comes time for renewal. However, you may receive a letter from the DMV that gives you a date when your license will be suspended if not resolved ASAP. If you have two FTA/CIVAs, then your license is going to be suspended for sure, but you will still get a notice letter from the DMV giving you the date the suspension will take place.

The notice from the DMV is important because to convict someone on a charge for driving on a suspended license requires knowledge of the suspension. There is a presumption of knowledge if the letter was mailed to the address the defendant has on file with the DMV.

Back to appearing in court. A defendant can how up to court early and appear in court on the same day. However, court clerks will often discourage this by having you set a future date. In Orange County, you must appear in Fullerton, at the North Justice Center in Collections Court. Central Justice Center in Santa Ana, Harbor Justice Center in Newport, and West Justice Center in Westminster, no longer hear “CIVA” cases (abbreviation for “civil assessment” added to a criminal or non-criminal infraction that is otherwise treated like a criminal case [e.g., speeding ticket]). All CIVA infraction cases are heard in Dept. N1 at North courthouse between 8:30 a.m. and 10:30 a.m. on Wednesdays, Thursdays, and alternating Fridays. The Collections Clerk Windows open at 8:00 a.m. Usually, the first ten defendants that try to “walk-in” their case the same day will be able to be heard that day.

Everyone else will have to set a future day. All future dates are at least 5 days out. Remember, cases are only heard on Wed., Thurs., and every other Fri., with a maximum calendar of over 200 cases per day. So for example, if you appear, your case will be called within a 2 hour time period in a room chuck full of defendants. If 260+ cases are called in 2 hours (many defendants have multiple cases), and there are only 120 minutes in 2 hours, … well, you can do the math, it goes fast! How does this effect the individual defendant?

Each defendant needs to listen to the what the court is doing so that they know what to tell the judge when their case is called. First, the judicial officer will ask if you want to plead guilty and pay your fines. If you do not, they you better know what else to do. You still have rights, but the court will hold your drivers license over your head (a DMV hold can result in a suspension of your license) until your case is resolved. Maybe you can take traffic school. Maybe you want to set your case for trial. Maybe you are tired of dealing with it all and are ready to lay down and pay it off. But, the line to pay it off is very long–200 hundred other people in the same boat–so you will be in court all morning.

If you hire an attorney, an attorney knows how to get the DMV hold removed, how best to fight your case, even get it dismissed. Not to mention, maybe you should not be charged the extra $325 civil assessment because you had a valid excuse or some right applies to you. An attorney is familiar with all of these issues. Please feel free to contact us at 310-210-2212, you might be able to get the attorney on the phone right away, which is important, because getting that DMV hold off of your license is important.

The Truth About Fighting DUIs

DUIs are extremely common. They are usually misdemeanors, punishable by up to six months in jail and over $4000 in fines and fees, plus issues with the DMV. Reality is that the prosecutors want the cases to resolve quickly so they give offers to resolve the case. Maybe the offer is good, maybe it is bad. An experienced attorney representing your interests will let you know. the court will not let you know, and the prosecutor will not let you. They may encourage you to take whatever offer they give, but that is not a good idea in most situations.

What I am about to say in no way undermines the value of having legal representation in criminal court. There are many issues that an attorney watches out for you, and has your best interests at heart. Attorneys see problems that you would not even know needed to be fixed. Attorneys explain to you what the judge means, what is happening, what the issues are, what you need to balance and consider in making decisions about your case, negotiates and fights for your position, to protect your rights and get the best resolution to your criminal case, among many other things.

However, the fact that you have an attorney that fights for you does not does not mean that you will win at trial. It does not mean that your case will magically be dismissed. The best criminal defense attorneys still have a majority of clients who plead guilty. Granted, that is not how they market their services. And it is not what people want to hear. However, the reality is that your attorney will fight for you, and will probably get you a much better resolution to your case than you would have gotten on your own, but that probably includes pleading guilty to something.

Realize this, that most cases never go to trial. Statistically, almost nothing goes to trial. For example, in West Justice Center, about a week ago, the Orange County District Attorney had 41 misdemeanor cases set for trial on the same day. The court does not even have half that many courtrooms. Consider that on that same day, there were hundreds of new criminal misdemeanor cases set for arraignment, maybe almost a hundred continued cases set for pretrial conferences, plus more cases continued for arraignment, and one or two cases actively in jury trial, if at all, in that courthouse on that day.  This does not include felonies and infractions. (Fewer felonies but they are more involved. Way more infractions, but they are less involved.)

Percentage wise, less than 2% of all cases ever go to trial. And a much smaller percentage actually proceed with trial. This statistic is generally used in reference to all types of legal cases, not criminal alone. However, based on the numbers above, one can clearly see that if even one percent of all criminal cases actually proceeded with trial, the District Attorney’s Office and the Courts would be overwhelmed. Consider one new trial starting every day in the courthouse. The courthouse would be full of jurors waiting to be selected. The shortest DUI trials, for example, may take two days if any one courtroom gave all of its resources to that trial alone, all day, and all parties were ready to proceed and there were no interesting issues. The numbers just do not allow jury trials happen.

DUIs are not an exception. Most DUIs resolve by the defendant pleading guilty. No honest attorney would tell you otherwise. I heard a certain radio advertisement from an attorney’s office that has a catchy phrase. I like the phrase. It is brilliant marketing. It is exactly what people want to hear. Without being too direct, it is about if someone is your friend that they would not let a friend plead guilty. Well, I understand what he is portraying; it is what people want to hear. They do not want to plead guilty. And nobody wants to hire an attorney that starts the conversation with, “I’m your attorney. You will probably plead guilty.”

 

What a good attorney will do for you is explain the legal process, your rights, listen to you concerns, look for ways to fight your case, look for defenses, find holes in the prosecutions case, and keep you informed along the way. A good attorney is also valuable because they go to court for you, without you having to worry about. This saves you time and resources. The truth is that cases usually do not resolve right away, they take some time. The court does not allow attorneys to set cases too soon because the court’s calendar is booked in advance. Case take time for many reasons and your life does not wait around, but keeps going. Leaving the burden on your attorney is golden. Your attorney will discuss options with you once there are developments in your case.

There are ways to suppress the prosecution’s evidence against you. There are multiple ways to negotiate. There are different ways and sources for seeking favorable resolutions to your case. Maybe your case is ripe for trial. Maybe your attorney got you a great plea-bargain that outweighs the risk of trial. You just cannot know these things until an attorney takes a good look at your case and talks to you about it.

In the meantime, keep yourself informed, enjoy life and family, and work hard.

Exceeding 65 mph – CHP on the Freeway

The hands-down most common speeding ticket is either California Vehicle Code Section 22349(a), usually issued by the California Highway Patrol (hereafter “CHP”) issued on a freeway, or California Vehicle Code Section 22350, usually issued by city police on a city street. Here, we will introduce 22349(a), exceeding the posted maximum speed of 65 miles per hour. The exact text of the California Vehicle Code is this:

 

Maximum Speed Limit

22349. (a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

 

Section 22349(a) is really quite simple. This is your typical 65 mph posted on the freeway. (This does not apply to commercial truckers who are usually subject to a maximum of 55 mph even when posted 65 — same applies to pulling a u-haul trailers, etc.) Basically, 66 mph or more is a violation. Nevertheless, higher speeds are much easier to prove in court versus fighting over one or two miles per hour. When someone is cited for something like 67, that does create a pretty good trial and could get dismissed on the merits. Regardless, higher speeds generate higher fines. Higher fines are broken down in mph increments over the speed limit. 1-15 over is a $35 base fine. 16-25 over is $70 base fine. 26 or more over is a $100 base fine. For example, in Orange County, a $35 fine really means $238, $70 is $367, and $100 is $490. (Do not forget to add $54 for court administrative costs to process traffic school. In addition, add another $10 to the base fine for each prior violation, which exponentially effects the total.)

However, we all know that on Los Angeles County freeways, if you do not go at least 65 mph, you will get honked at, lights flashed at, and passed by/swerved around. As a side note, CHP officers have their hands full with fast speeders and other pressing issues, so, as with any operation, choices must be made as to where to allocate resources. It does not take a genius to conclude that if two cars are on a freeway, and one is going 80 mph and other is going 75 mph, that an officer would pursue the more obvious and faster speeder. That being said, one could reason that with all the 80+mph speeders on California freeways, that being cited for under 80 is relatively rare, not unheard of, just not common. (Do not quote me, but having seen thousands of tickets in court, I might say something like seeing 22349(a) for under 75 mph is extremely rare.) One time I heard a judge say this about a 75 mph ticket in a 65 zone: “That’s the slowest speeding ticket I’ve seen issued on the 405 freeway.” On the other hand, if someone is cited for 89 mph, judges will make sarcastic comments like, “It’s the 91 speedway, watch out!” Regardless, officers have plenty of business if they only writing 80 mph and over.

(Make no mistake about it, the courts care a lot about collecting money. A government operation that fines people is a business which ever way you want to cut it. Granted, it serves the public good by keep the public safe through punishing and deterring crime. Regardless, the courts needs money to operate. Traffic tickets probably generate more money for the court than all other crimes put together. We can talk about this and conflicts of interest another time.)

To determine freeway speeding violations, the CHP uses a handful of different means. They use radar on their cars while parked or driving, radar or lidar guns held in their hands, visual estimations while standing still, or pacing while driving. This covers the most common means. There are other ways to determine speed but not all are legal, like a speed trap, and some are extremely uncommon, such as using a helicopter or airplane. City police are known to use helicopters, especially the bigger cities, like Anaheim and Los Angeles. However, aircraft are usually used for crimes, not speeding. By the way, airplanes are used to follow drug traffickers. But, we digress.

A pace is the most simple way to prosecute a speeder because all the CHP driver has to do is follow a speeder, like a pace car, hence the name. Pacing is really easy when the whole freeway is speeding. The officer usually picks out the fastest mover that he sees. The officer will then position himself at a set distance from the car. This requires visual estimation. However, it does not require an expert to testify about holding the same distance from a moving object using visual contact. It is the basic concept of parallax that all two-eyed persons use and trust every day. The officer merely testifies to the speed his car was going and that he held the same distance from the other car.

I have never heard an officer testify to less than a quarter mile pace; unless the car passed him when the officer was speeding at a set speed, i.e., no change in velocity of the officer’s car during the observation, or the pace was combined with some other speed determiner, like a visual estimation. Otherwise, the officer will invariably testify that he held a certain distance behind the speeder for a certain distance of driving. For example, the officer will testify that he held a 300 foot distance behind the speeding car for one mile. The defendant might say that he did not see any CHP behind him. Often times, the officer will say he was following from a different lane, not directly behind the car, e.g., officer in the #3 lane while the speeder was in the #1 lane. There are different scenarios, but it comes down to the officer’s credibility of being able to follow another car while visually keeping the same distance. It is not hard to do, even with other traffic.

However, sometimes these cases are dismissed at trial or found not guilty. One particular not guilty holding came from the officer not having a direct view of his speedometer. The officer was the passenger while another officer was driving. Since the officer was looking at the driver’s speedometer at an angle, the court determined that the officer could not accurately nor consistently determine the speed of the police cruiser. In contrast, the judge said, if the officer was the driver, then the speedometer is always directly in your vision and aligned to be read correctly.

Another time a not guilty resulted at trial was when the CHP officer did not have his calibration document present for his vehicle’s speedometer. However, another factor was really at play her. The judge was old and almost retired, and the defendant was old, past retirement, but respectable in presentation. The judge was clearly empathizing, as many cases with the same issue in front of the same judge were not dismissed. Yes, judges are people, too. And, they do things like this a lot. Well, a case dismissed is good regardless of why.

Some officers like to use radar on their car. This type of radar gives the highest speed reading of a set of approaching vehicles. So if one car is passing all other cars, or is alone on the road, the fastest driver gets the ticket. While the technology is not violator specific, it has been around for a long time and is widely accepted when coupled with an officer’s visual determination of which car was going the fastest. It is not uncommon for officers to testify that they were watching the speeder in their rearview mirror.

Radar guns are similar but have aiming devices. Some people read articles about radar guns and why they do not work and try to fight it. However, this is fruitless, as radar is widely acceptable as reliable, and, most errors, if any, go in favor of the speeder, not the officer. Go read Popular Mechanics or something similar to learn more about radar guns, but only for fun because it will not help you in court.

Laser and lidar guns are target specific technologies that require training by the officer. (Everything else above requires training, too.) However, on the freeway, so long as the officer checked that the gun was working, has proof that it was calibrated, and demonstrates that he or she used the gun correctly on the specific car it was targeted at, the court is happy to convict.

There are many issues that arise in speeding cases that go to documentation, credibility, hearsay, foundation, and so on, that can be challenged. The popular trend of having attorneys in court has had good results, but it has also kept the cops on their toes, leading to better preparation for court. Then there is the issue of discovery, and whether or not it was requested and whether the judge requires the prosecution to produce anything at all of it was not requested timely, in advance, by the defense, and so on. However, this is for another discussion.

In summary, speeding on the freeway is common but using prosecuted for higher speeds, over 79 mph. Proving some was speeding is easy for the officer when he has direct evidence through his own observations and court-trusted technologies, from speedometers to laser guns. Rule of thumb is to say under 75.

“I was going with the flow of traffic.” and Other Common Non-Defenses

“I was going with the flow of traffic” is Not a Defense

The most common defense I hear in court, virtually everyday, is “I was only going with the flow of traffic.” In law, this is not a defense at all. A speeding violation occurs when a driver exceeds a certain speed. it does not matter if other cars were speeding, it only matters if the driver cited was speeding. (The speed limit may be established for certain road conditions, or may be a statewide maximum speed, or may be posted speed, or may be a speed limit for the type of operation, e.g., pulling a trailer.)

“I needed to go pee” is Not a Defense

A real emergency may be a defense. However, “I had to go to the bathroom” is not a defense. One time I do recall a judge giving someone a break due to a pressing personal hygiene need. However, that did not relieve (no pun intended) the person of all liability; she just got a reduce fine.

“I merged in the carpool lane to avoid an accident” is Not a Defense when You were Following too Closely

A retired judge I used to see every other day in court used to say the same thing every time a defendant, or client, said that they had changed lanes into the carpool lane to avoid an accident. He would say, “I have been doing this 22 years, and only four times has someone had an excuse other than to avoid an accident for being in the carpool lane.” He would then go on to explain that unless they had something else to say besides they were avoiding an accident, it was probably not going to help their case.

Their are a few problems with a driver claiming he or she was avoiding an accident by making a lane change over double yellow lines. For one, obviously, this creates evidence against the driver/defendant that the court will now use to find that the driver did in fact violate the law. Now, absent an defense, the driver will be found guilty. Another conceren is that unless the driver can establish that the dangerous situation was created in no way by the driver following to closely, the court will assume that the driver could not stop in time because the driver did not leave sufficient distance infront of him/her to stop considering the speed.

The DMV handbook demonstrates distance requirements for stopping to avoid an accident, between cars, based on speed. Basic calculations are shown in terms of car lengths. (Unfortunately, if a driver keeps the distance that the DMV handbook states, when driving on the 405 freeway, for example, that driver will be constantly passed and cut in front of by other commuters. Reality does match the textbook. However, the textbook determines the violation.)

Thus, best to slow down, at least a little, not tailgate, at least not too close, and stay innocuous while driving.

 

Bill of Rights – Lest We Forget

Remember way back in elementary school learning about the Founding Fathers and the Bill of Rights? Well, here it is as a reminder. Enjoy!

 

The Bill of Rights: The First Ten Amendments to the Constitution of the United States of America

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Attorney on Your Side

Sometimes the way to enjoy life is to allow the professionals to do their job. Getting pulled over by a police officer is an interesting experience, to say the least. Dealing with the traffic ticket once it is in your hands is especially challenging. Concerns arise about insurance, money, DMV record, court appearances, and even how you define yourself as a person, a driver, a friend, a reliable family member, and so on. Because “nobody walks in LA” we seem to define oursevles by our driving in some manner. However, to put things in perspective, a traffic ticket should not be a devestating, life-altering event.

This is why you need an attorney, such as the Law Office of David Dastrup. We understand the challenge that even the most stable and confident person experiences when, for example, you get a speeding ticket. In fact, there are many issues that our attorney will use to defend your interests. You have Constitutional Rights under the United States of America and the State of California that protect you in regards to your traffic ticket. Many of the same rights that we protect our clients with criminal cases also apply to our clients with traffic ticket cases.

You have the right to a speedy trial, the right to confront your accuser, the right to not have excessive bail, to not be subject to unlawful police searches, . . . and so on.

Because you are a person of integrity, you may wonder why you should fight your ticket even though you were, for example, caught speeding. When you hire the Law Office of David Dastrup, we fight for you based entirely on integrity that comes from “One Nation Under God,” using the Constitutional rights your Founding Fathers established, and later, congresspersons preserved, for you. These several rights you hold are kept alive today only when people like you put them to use. We will represent you and your rights in seeking to have your case dismissed.

When your case is dismissed, that essentially means that you have won in that there is no conviction, no fine, no state or court costs or fees, no traffic school, and, most importantly, no point on your DMV record.

In the alternative, if you case is not dismissed, there is a high probability that it will be reduced to a non-point violation, meaning no points on your DMV record, no need to take traffic school, no insurance rate hikes.

In the lesser likely alternative, a minority of case that we have handled in past have resulted in traffic school, sometimes with a reduced fine, sometimes the full fine. Sometimes the fine is reduced based on a guilty plea or guilty at trial. Sometimes there is no reduction.

There are no guaranteed results. The best that any attorney can do is to give you historical data of other case results, but there is no guarantee that your case will result in any particular way.

Regardless, other benefits of hiring an attorney is that you get access to the law that you would not have on your own. This is true especially when dealing with an attorney that answers your questions, explains the law, and takes the time to converse with you about your needs and concerns.

Hiring an attorney to represent you in court frees up your time. Going to court on your case can take several hours on several different days. For example, when you appear at arraignment–the first hearing–you will have to wait your turn in a courtroom full of people. Some courts,  in Orange County, for example, hold over two hundred people. In Los Angeles, one courthouse in particular handles hundreds of ticket every day. What these means for you is that you may be in court all day. On misdemeanors, it is extremely common that you are in court from 8:30 to sometime in the afternoon.

It is your choice. It can only help to ask an attorney directly at 310-210-2212.

Represent Yourself vs. Attorney Represents You

Having the right tools can make all of the difference.

Going to court yourself may seem as foreign as what you are called, “propria persona.” The courtroom can feel like a foreign country, with its own language (legalese), its own army (bailiffs), and its own rules and procedures, not to mention the added ambiguity of the law.

In contrast, a trial attorney feels at home in the courtroom because he or she is in court everyday representing people like you. An attorney has bag full of legal tools and experience that created confidence and comfort in court.

In the alternative, you could hire an attorney to help you learn about the things you need to know and what you need to do to protect yourself. Unfortunately, the cost of this advice is probably more than having the attorney go to court with you. This is because there are so many variables which, by the very nature of being variable, are not known until the case unfolds. Great attorneys are prepared and able to deal with what is thrown at them at the last second. There is no way you could be as prepared with a little legal advice as an experienced attorney.

Remember, you are defending your driving privilege. This may not be something you want to risk to your own devices. That is why an attorney can be so valuable. On the other hand, just because an attorney represent you, does not mean you will win. The public judges an attorney by the ultimate result, regardless of whether or not the attorney did everything right and then some.

Side note: Yes, driving is only a privilege but it sure feels like it should be a right. You should protect that privilege like it is a right. However, the courts and the DMV clearly treat it like a privilege.

 

Judges with Attitude – Ugh!

The worst part about appearing in court is dealing with judges with attitudes. Unfortunately, it is the sad disposition of man that anytime anyone gets a little bit of power, they abuse that power. Make no mistake about it, a judge is in power. More often then it should be, some judges are sarcastic, inappropriately critical, and condescending from the bench. This is an abuse of power. They were not put there for this. They were put there to judge, to make rulings, to keep order in the judicial system.

Once a judge starts passively or actively insulting or attacking anyone standing before them, they are acting outside their given authority and power. Unfortunately, there is no realistic way to combat this. It is like dealing with a road-raged driver. You can either ignore them and keep driving or give them attention and their rage will increase. Same with a judge. If you respond to their abuse of power actions, they get more irate, more sarcastic, more insulting, from the bench.

How to behave when before a judge giving attitude:

Courtroom decorum is all about keeping an even keel, win or lose. A professional cool response to all situations. Be flexible while staying focus on what you planned to do before you entered the courtroom. Remember, the judge is not always right and you have the right to be heard. Whether or not what you say makes a difference in ultimate resolution of your case, rest assured that your demeanor always makes a difference in how you are respected but the court and the court staff. Having a good reputation under fire is like gold. It opens doors that you may not have known existed.

On the other hand, if you are only going to be in court one time for your traffic ticket, then, how you act does not really matter, except for your personal integrity, and who you represent, and what kind of society you want, and what kind of example you set. Hopefully the idea is clear.

Kindness begins with you. Your example affects society. Let me explain. If the first person heard in court misbehaves, is rude or boisterous, it can be contagious. This is similar to when someone yawns. The person that observes the yawn will then yawn. So your behavior matters.

Next, you want to keep your integrity. Once I observed a man threaten to kill a police officer in court. The judge and bailiff (guy with the gun) stood by and listened. They were allowing the situation to de-escalate. It didn’t. (However, it usually does so it is worth the attempt.) The man was the defendant. The reason the man threatened the police officer with foul language, yelling, and “If I see you on the street, I’m going to kill you” was because the police officer used racial slurs against the defendant at the time the traffic ticket was issued. The police officer told the man to “Go back to where you came from. You do not belong in this town. Take all of your [race/national origin] family with you.”

This situation shows a judge without attitude. It goes both way. Here, the man had attitude. He should have first considered his own integrity, his own self-respect, and the family and God he represented. No matter how upsetting a situation, the courtroom is not the place to threaten someone. The ultimate resolution of this man’s case was not affected by his behavior only because the judge in this courtroom was good, able to sift through what mattered for the original charge. However, the man did have to deal with a few bailiffs before leaving that day.

In summary, not matter what someone else does, even a judge, it is best to keep your cool, follow your plan, and demonstrate self-restraint.

Probation Violation 101

After a case is resolved with probation (for example, plea-bargain/sentence was to serve ten days jail and three years of informal probation, in lieu of six months in jail), a defendant is subject to terms of probation. On misdemeanor cases, probation is most often informal and unsupervised. This means the court may order a defendant to notify, essentially self-declare, any violations of probation within so many days, usually ten days. No one is watching over your shoulder, so as long as you stay off of the police’s radar, everything remains cool, undetected, “informal” and “unsupervised.”

Most probation violation issues arise from failures to satisfy the sentence (the punishment imposed by the court) whether agreed to in a plea-bargain or imposed after being found guilty at trial. This may include not paying a fine timely, or not attending a self-help class as ordered by the court, like AA meetings. Fortunately, so long as a defendant is not blatantly ignoring the court and has taken some steps in the right direction, judges tend to give at least one second chance to do the right thing. That means usually no jail for post-conviction short falls taken care of as soon as possible.

Before we go on any further, we should be aware of what the terms of probation include. One term that is virtually always included is to violate no law. This means no new criminal cases. It can mean a criminal violation that does not result in a case, in theory. However, usually probation violations are triggered by new criminal charges, a new case. Criminal activity or cases includes things like being in the park after closing, drinking in public, urinating in public, prostitution, drugs, and many other crimes. It does not include infractions, such as speeding, or parking tickets, such as not moving the car on street sweeping day. Crimes are things punishable with jail time. Note that some speeding is a crime, when it rises to the level of fast and furious driving. That is called a speed contest, a.k.a., racing.

Other common terms of probation include do not drink and drive with a measurable amount of alcohol in your system, do not drive without current and valid license and insurance, obey all orders and rules of the court and probation department, use your true name and date of birth at all times, carry a government issued identification card at all times, disclose the terms of your probation when asked by law enforcement, etc.

The best way to avoid the police radar while on probation is stay away from where police are frequently found, a.k.a., do what your mother told you to do. Mothers are just looking out for our best interests, telling us not to hang with the wrong friends or places of mischief. Let me simplify what our moms meant. To avoid the police, do not hang out on weekends where the police patrol, e.g., no partying in public places or loud friend’s places. Maybe avoid the local pub in the wee hours until after probation terminates. All too often, a good time with intoxicating substances, legal or not, results in noise and boisterous behavior, for better or worse. Too much partying grabs the attention from those who would call the police, regardless of whether or not there are fights or illegal activity. And, it goes without saying, do not smoke marijuana in public, even with a doctor’s recommendation (many judges do not accept it as a prescription, merely referring to it as a “recommendation”). We all get the idea: avoid any chance of close encounters of the police kind.

The more concerning probation violations are new criminal cases when the prior case is for the same thing. A repeat offender is a flashing neon sign to the judge saying, “If you let me out of this court house, I will do it again, and again, because public safety is not my concern.” Then, a judge is more inclined to require bail, i.e, you have to give the court money that you do not get back unless you are good and return to court.

The reason probation violations are so serious is because they are punishable with jail merely based on a preponderance of the evidence. That is drastically different from the beyond a reasonable doubt standard that must be proved at a criminal trial. For example, if a cop says someone violated the law and the prosecutor agrees by filing a criminal complaint, the judge will probably then be able to fairly easily find enough evidence that it was more likely that a crime was committed than not committed. A much easier standard of proof than beyond a reasonable doubt.

If someone picks up a new criminal case in the same county that had jurisdiction over the old case, that will almost always result in a probation violation. Once a new case occurs, and triggers a probation violation on the old case, that probation violation is a whole new matter. Not even the courts consider if a client was represented by an attorney initially, pre-conviction. The probation issue is between the defendant and the court.

However, a defendant may hire an attorney to represent them on a probation violation. Having an attorney on a probation violation can be invaluable for many reasons, even if the ultimate resolution is to admit the violation of probation. Attorneys will often know which judges impose jail on probation violations and which judges merely reinstate the terms of probation without further punishment.

On a probation violation, a defendant can be punished up to the maximum sentence less any sentence served already on the original case. Back to the criminal repeater issue, judges tend to punish more when they think that the probationer will go out again and do the same thing. Thus, the judge has no confidence that he can keep the defendant from harming the public. Therefore, repeaters may get thrown into jail on the spot, remanded into custody.

Here is where the value of an attorney really comes into play. The attorney knows ways to soften the probation violation, to mingle it with the resolution of the new case, to keep the case at the same stage or progress if forward, and many other factors that directly affect the ultimate outcome for the client. In addition, and probably most important, if the attorney is able to appear without the client present, under what is called “977 authority,” then the client is not thrown in jail when he is not present in court.
Because the probation violation matters are effectively separately punishable from original cases, they are treated as separate cases, like a new case with less steps. Although less involved, there still may be many appearances and issues to consider in a probation violation matter.

Here is an example of a fairly common scenario. Attorney represents client on driving on a suspended license and is able to resolve the case without actual jail time. Nevertheless, the case was punishable for up to six months in jail and $4200.00 in fines and court fees. The client agrees to be on probation for three years to avoid a more serious sentence that would have involved jail. Here, the client serves no jail time.

However, one year later, the client drives without a license, a misdemeanor. This new criminal case is plead guilty to as a misdemeanor for a low fine, no jail, and no probation. The court finds a violation of probation on the older suspended license case, but merely reinstates the terms of probation without additional sentencing.

A few months later, the client gets caught again for driving on a suspended license. The defendant decides not to hire an attorney this time since last time he thinks he got off pretty easy. However, when he appears in court himself, the court sees that this person is going to continue violating the law if minimally punished. The court immediately takes the person into custody when he shows up in court to resolve his “easy” case, just like the time before. The defendant failed to realize the when the attorney showed up on the previous case, that the attorney worked things out. An experienced attorney will know the ins and outs of the courtroom and judges and how to use this information to his client’s advantage.

As this example shows, the defendant’s perspective throughout this scenario was based on risk, history, and, ultimately, the assumption that the same outcome would follow. However, the attorney sees a method to the court’s thinking and process. This helps mitigate (reduce) risk and helps with risk avoidance.

Let’s explain a little more about probation punishments. For instance, if a client pleads guilty on a case punishable by up to 6 months jail, but is only sentenced to 10 days jail, serves the time, pays his fines, then he is done with that sentencing, the case may be closed. However, more often than not, he will have probation for three years. If he has any new criminal conduct, that violates his probation. A violation of probation is punishable by up to the maximum less sentence served. In this example of 10 days jail served on a typical misdemeanor, that leaves 5 months and 20 days in jail remaining. This remaining jail time is now the maximum punishment for the Probation Violation. Thus, we have a client with a whole new problem that did not exist when we pled him out on the case initially. A PV is treated like a whole new case and new set of problems.

Court Appearance 101 (for infractions, e.g., speeding ticket)

WHAT HAPPENS WHEN YOU GO TO COURT…

The first time to you go to a Los Angeles Superior Court of California to deal with your traffic ticket, you will probably be directed to a clerk’s window. The clerk will probably tell you that you have to set a date in the future to be heard by a judge. Then you will have to go back to court another day. That second time will be before a judicial officer, maybe a judge, commissioner, temporary judge, or otherwise. Cases will be called in some order that you cannot change, so you may be stuck waiting in court a few hours, or all day. (FYI: I have noticed that sometimes people bring babies to court with them. This never elicits sympathy from the court to have your case heard sooner. If the baby cries, the bailiff tells them to wait outside. If their case is called while waiting outside, maybe a warrant would be issued.) Basically, just trying to get your case heard will take at least a few hours and a trip to court, if not two separate trips to court.

WHEN YOUR CASE IS FINALLY CALLED…

The bailiff may seem friendly or mean, but it does not matter. His or her job is to maintain order, and security, in the courtroom. “Turn off your cell phone!” is the first thing you may hear. Then the bailiff will call through all of the cases as a roll call. Persons that did not answer will be put in a separate pile. Persons that come in late may have to wait until the very end to have their case called. This could take from 8:30am until noon, or until after lunch. There is also a court clerk. The clerk is basically the secretary that runs the paperwork show and assists the judicial officer with details. Sometimes the clerk or the judge does the roll call. Some judges like to do it themselves to establish their presence and to expedite the process. This is called calling the calendar.

BEING ADVISED OF YOUR CONSTITUTIONAL RIGHTS…

It is a little ironic that the court advises you of your constitutional rights because they later tell you that they cannot advise you of the law and they also do things to encourage you to plead guilty quickly so that they can clear their docket (the list of cases on calendar for that day). On the other hand, you can exercise your constitutional rights. Furthermore, it is good that judges seek to be efficient and quick. This saves taxpayer dollars in general. If everyone who ever got a speeding ticket in Los Angeles County wanted to take an hour to talk to the court, traffic court would be a 24/7 event without any holidays and would be backlogged indefinitely. Notwithstanding, if you want to be heard, you have that right. The problem you will face is that this first hearing, called the arraignment, is not your chance to be heard. You must set your case for trial to he heard, but we will get to that in a minute.

YOUR OPTIONS TO PLEAD AND PAY OR FIGHT ANOTHER DAY…

The judge (“judge” here is used generically to refer to whatever judicial type officer is on the bench) will inform you of the charges against you and ask if you understand. The judge does not care if you agree or do not understand the law. He or she is only asking if you understand that you are being charged with what he just said. What he just said to you is that the People of this great State of California found good enough reason, probably cause, to charge you with violating a law written in the books, that you are aware of and should understand because, after all, you did pass a driving test to get licensed to drive. (This all sounds a little circular and paradoxical, but that is how you will feel in court when you are standing I front of the judge. This is a little introduction to that sense of confusion.)

Upon being informed of the charges, the judge will ask what you want to do. You will have several options. The most basic options are to plead not guilty or guilty, or to take traffic school. Quite often, a judge will reduce your fine if you plead guilty. People often ask the court to reduce the fine when taking traffic school. However, rarely will a judge do this because it creates a little more work for the court. The court then has to keep the case open until you complete traffic school and the court receives notice of that completion. Furthermore, many judges think you are getting a break already with traffic school so why should they add more of a break. Moreover, the courts keep statistics on how much money they collect. The balance for the court, at least in some part, is clearing the docket (the day’s workload) with efficiency while also supporting the financial needs of our state and court. Thus, some balance is reached by encouraging people to plead guilty with reduced fines. (This will make more since once we look at the repercussions for the court when someone pleads not guilty.) Note that there are some fines that our legislature has told the court that they cannot reduce the fines, e.g., red light (California Vehicle Code section 21453), and car pool, (section 21655.5). (You probably would not be shocked to know that many judges find ways around this, but we can talk about the kindness of judges another time.)

Yes, you will get a negligent operator point on your California DMV record if you plead guilty for a reduced fine. The reason many people plead guilty is because they feel it is the moral thing to do, and that, in fact, they are guilty of speeding (California Vehicle Code sections 22349, 22350) or rolling through a stop sign (section 22450) or generally disobeying a regulatory traffic sign or signal (section 21461). This will probably lead to an increase in your auto insurance rates, but possibly not, depending on many factors. However, a reduced fine may save you up to a few hundred dollars. More often than not it will only save you about a hundred dollars.

On the other hand, some ticket in California do not result in points on you license. For example, some types of carpool lane violations are not a point, like failure to obey posted sign for HOV lane (California Vehicle Code section 21655.5(b)). Cell phone tickets are not points, either. However, I once assisted a commercial driver in resolving a cell phone case by getting the fine reduced in half. He called me back later and informed me that his company did not care about the point or not, they were going to suspend him from work based on the conviction alone. (This is rare, and likely only if you are driving a multi-ton tractor-trailer combination for a company that wants to avoid liability at all costs.) Fortunately, with my extensive experience in negotiations and traffic court possibilities, I was able to have the case dismissed by the judge post-conviction. I then sent a letter to his company explaining that the case was dismissed, no conviction on the record. (Not to brag, but this is the kind of service people need from an attorney in tough law traffic courts of Orange County, California, specifically the West Justice Center. [It is not always possible to get these fantastic results.])

CONSTITUTIONAL RIGHT TO TRIAL, HAVING YOUR DAY IN COURT…

Pleading not guilty is the path to take if you want the judge to hear your concerns or to fight your case. For most of us, we just want to be listened to, for someone to acknowledge us, our concerns, our thoughts, and hear our side of the story. A judge will listen to you and the cop will hear it, too; whatever you say in court gets heard by all in the public forum. In Los Angeles County and Orange County courthouses, they are so busy with traffic cases that you will be one out of dozens of people in the courtroom waiting for their turn to talk. Usually, at the trial hearing, most defendants change their mind about being heard, but elect to go to traffic school if the judge will still allow it. The judge may not allow traffic school once you appear for trial. Sometimes, the judge will reduce the fine for a guilty plea at trial. Nevertheless, when you are standing before the judge at arraignment, deciding if you should plead not guilty to set your case for trial, you must realize that any option the judge gives you now, at the arraignment stage, may not be available when you return to court for trial.

An old judge once told me that court is all about being prepared beforehand. This is true even for your single appearance on a traffic ticket. It is important because traffic school or a reduced fine may not be available at the trial hearing. If you want to go to trial instead of the court’s offer, you need to make an informed decision. Information does not come from the court. That is why you need to know beforehand.

In contrast, as an attorney, I am almost informed and capable of making a variety of options possible that you may not even be aware exist. For example, I am always able to achieve other options at trial besides proceeding with the trial. It is just the nature of being an attorney, knowing what to say, what laws to use, how to treat the court with respect, and common sense that comes from the experience of being in trial court every day. I love my job; it is fun. However, for you, being in court for the first or second time, it may be nerve racking. There will be a bailiff, a sheriff with a gun watching your every move. You will be questioned by the judicial officer, the person with the black robe sitting high up on the bench looking down at you. There will be dozens, or even hundreds, of people staring at the back of your head as you stand before the judge. However, have no fear because you have constitutional rights. Just make sure you know what those are before appearing in court.